WASHINGTON — The chairman of the Senate Select Committee on Intelligence on Wednesday proposed changes in the foreign intelligence wiretap law that would make it easier for U.S. spy agencies to eavesdrop on phone and e-mail conversations between foreigners outside the United States.
But Sen. Jay Rockefeller, D-W.Va., rejected a proposal from Director of National Intelligence Mike McConnell to give the attorney general — currently the controversial Alberto Gonzales_ the power to authorize foreign intelligence collection without going through a secret foreign intelligence court.
The developments pitted Republican efforts to strengthen executive power in the name of fighting the war on terrorism against Democratic efforts to balance that goal with protecting the civil liberties of American citizens and residents.
Rockefeller's proposed changes to the Foreign Intelligence Surveillance Act (FISA) were being negotiated with the White House late Wednesday. Rockefeller and Senate leaders of both parties said they hoped an agreement could be worked out so that the measure could be voted on this week, before Congress takes an August recess.
The Democrats' proposed changes were a response to assertions by congressional Republicans that U.S. intelligence agencies are missing important information because FISA is too restrictive. McConnell said in a letter last Friday that change was urgently needed "to close critical gaps in the intelligence community's ability to provide warning of threats to the country."
Rockefeller said the Bush administration's proposal went too far.
"The administration has offered a proposal that would instead permanently grant the attorney general excessive surveillance powers by giving him sole authority to direct surveillance while completely removing the FISA court from the process. That is simply unacceptable," he said in a statement.
"The FISA court must continue to play an essential role in authorizing surveillance and overseeing its execution."
Rockefeller said his proposal would underscore that FISA doesn't apply to foreign-to-foreign intelligence collection. The secret FISA court, however, has an oversight role when foreign surveillance involves a person in the United States, and warrants are then required.
The Democrats' proposals that Rockefeller outlined would require the FISA court to examine the procedures that intelligence agencies use to determine whether a surveillance target was a foreigner. The court would have to endorse those procedures before the agencies could listen in without warrants.
Rockefeller proposed that the changes remain in effect only six months. In the meantime, Congress would consider long-term changes to FISA.
"Earlier this year, the Senate Intelligence Committee began work on the issue of modernizing FISA with the overarching goal of improving foreign intelligence collection, protecting civil liberties and preventing this or any future president from ever abusing surveillance laws again," Rockefeller said. But the committee was hampered when the administration refused to provide key documents about the warrantless surveillance program, he said.
The National Security Agency ran a warrantless surveillance program in secret from 2001 until late 2005, when it was disclosed. The administration announced in January that the program would be placed under the supervision of the FISA court, which would have to approve surveillance warrant requests.
Rep. Heather Wilson of New Mexico, the ranking Republican on the House Subcommittee on Technical and Tactical Intelligence, has called for changing the law to allow American intelligence agencies to listen to foreigners overseas without warrants. "American lives have been imperiled," she warned.
Wilson's office said that last week McConnell wrote to the House Intelligence Committee and quoted his letter in part: "We are significantly burdened in capturing overseas communications of foreign terrorists planning to conduct attacks inside the United States."
McConnell added that "in a significant number of cases, we are in the unfortunate position of having to obtain court orders to effectively collect foreign intelligence about foreign targets located overseas."
Michelle Richardson, a legislative consultant for the American Civil Liberties Union, said Congress shouldn't rush the changes. The civil liberties group was concerned that Rockefeller's plan to allow for court orders covering procedures for foreign collection would in many cases allow surveillance where one party was in the United States.
"It's not individualized, which is what's so scary about this," she said. "You are inevitably going to suck up innocent people — their calls and e-mails."
Sen. Russ Feingold, D-Wis., said the bill should have a 90-day sunset period so that any problems could be fixed faster.
"We need to wiretap terrorists, and we should address the problem that has been identified with FISA with respect to foreign-to-foreign communications," Feingold said. "But the administration's overly broad proposal goes far beyond that and would leave critical decisions related to surveillance involving Americans entirely up to the attorney general. The proposal from the Democratic leadership is better and involves FISA court review from the start. But it does not have adequate safeguards to protect Americans' privacy."
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